Demurrer (Judge Frederick P. Aguirre)

The Demurrer by defendant PNC Bank N.A., erroneously sued as PNC Mortgage, N.A., is sustained in part and overruled in part.

The demurrer to the third cause of action for quiet title is sustained with 15 days leave to amend. Plaintiff has not alleged tender to maintain his quiet title claim. Nor has he alleged any facts showing that the loan is void, which might excuse the tender requirement.

The demurrers to the first and second causes of action for violation of the Homeowner’s Bill of Rights (HBOR) and B&P Code section 17200 are overruled.

First, Plaintiff has sufficiently alleged a claim for “dual tracking” under Civil Code ¶ 2923.6(c)(1). PNC’s argument that the claim is not “ripe” until the trustee’s sale has actually occurred lacks merit. Such an interpretation is inconsistent with the plain language of Section 2923.6 (servicer “shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending”). (Mt. Hawley Ins. Co. v. Lopez(2013) 215 Cal.App.4th 1385, 1397 [“The first step in the interpretive process looks to the words of the statute themselves.”].) Next, Section 2924.12(a)(1) merely states that a borrower may bring an action for injunctive relief “[i]f a trustee’s deed upon sale has not been recorded”; it does not state that the sale must have occurred.

PNC has not cited any authority for its argument that the 5-business day “reinstatement” period of Civil Code section 2924c(e) applies to Section 2923.6. If the Legislature intended to impose such a deadline, it would have expressly done so. In subdivision (g) it imposes limitations based on whether the borrower has already “been evaluated or afforded a fair opportunity to be evaluated for a first lien loan modification prior to January 1, 2013 . . .” But nowhere does it impose a strict deadline to submit the application. The Court agrees that Plaintiff has failed to allege material violations of Civil Code sections 2923.5 or 2923.55, but it cannot sustain a demurrer to only a portion of a cause of action.

PNC demurred to the Section 17200 claim on the ground that “Plaintiff’s Complaint fails to allege sufficient facts to state any cause of action.” (Demurrer at 7.) As discussed above, Plaintiff has stated a claim for violation of Section 2923.6.